Dade County v. Kerce

• Decision Date: 05 October 1938
• Citation: 188 So. 642,137 Fla. 194
• Parties: DADE COUNTY v. KERCE et al.
• Court: Florida Supreme Court

188 So. 642

137 Fla. 194

DADE COUNTY v. KERCE et al.

Florida Supreme Court

October 5, 1938

On Rehearing April 14, 1939.

Suit by H. B. Kerce against J. M. Lee, as Comptroller, to restrain the defendant from making any allocation of gasoline tax moneys to the counties. Dade County intervened. From an order denying Dade County's motion to dissolve a temporary injunction, Dade County appeals.

Order affirmed. Appeal from Circuit Court, Leon County; J. B. Johnson, Judge.

COUNSEL

Hudson & Cason and G. M. McNutt, all of Miami, for appellant.

Joe Hill Williams, of Lake Butler, and Waller & Meginniss, J Velma Keen, and A. Frank O'Kelly, Jr., all of Tallahassee, for appellees.

OPINION

PER CURIAM.

In this cause Mr. Chief Justice ELLIS, Mr. Justice BROWN and Mr Justice BUFORD are of the opinion that the order entered by the Circuit Court in this cause should be affirmed, while Mr Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice CHAPMAN are of the opinion that the said order should be reversed. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the judgment should be affirmed or reversed and there is no prospect of an immediate change in the personnel of the Court, the judgment should be affirmed, therefore it is considered, ordered and adjudged under the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51, that the judgment of the Circuit Court in this cause be and the same is hereby affirmed.

Affirmed.

ELLIS, C. J, and WHITFIELD, TERRELL, BROWN, BUFORD, and CHAPMAN, JJ., concur.

Statement

Chapter 14486, Acts of 1929, Ex. Sess., establishes a Board of Administration 'which shall consist of the Governor, who shall be President; the State Comptroller, who shall be Secretary, and the State Treasurer, who shall be Treasurer.' Section 12. The State Treasurer is made 'County Treasurer ex officio'.

The Board of Administration has the administration of funds for the payment of county and district road and bridge bonds. The State Treasurer as ex officio treasurer for all of the counties under the statute has the custody of funds belonging to counties and districts for the payment of county and district road and bridge bonds pursuant to the requirements of the statute.

The title and pertinent parts of Chapter 15659, Acts of 1931 Ex.Sess., are as follows:

'An Act Relating to Taxation, Levying and Imposing an Excise Tax on Gasoline and Other Like Products of Petroleum in Addition to Other Taxes Thereon; Levying and Imposing a License Tax on Every Dealer in Gasoline or any Other Like Product of Petroleum; Providing for the Report of Sale of Such Commodities, and the Collection and Payment of such Taxes; Creating Special Funds for the Reception of such Taxes; Providing the Purposes of Such Taxes, and for the Deposit, Appropriation and Disposition of the Proceeds Derived From Such Taxes, and Prescribing the Duties of Certain Officials with Reference Thereto, and Declaring Certain Roads to Have Been and to be Built for State Purposes and as Being State Undertakings; Repealing Chapter 14575, Laws of Florida, Acts of 1929, Relating to the Subject of Gasoline Taxes; Repealing Chapter 14573, Acts of 1929, Relating to the Subject of Gasoline Taxes, and Raising Special Revenue for Educational Purposes, and all Laws in Conflict with this Act; Providing for the Enforcement of this Act and Penalties for Violation Hereof.

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. Every dealer in gasoline or other like products of petroleum in this State, under whatever name designated, shall pay a license tax of Five Dollars ($5.00) to the State, and in addition thereto, a tax herein termed 'gas tax' of six (6¢ ) cents per gallon for every gallon of gasoline or other like products of petroleum sold by him, and upon which the tax herein provided has not been paid, or the payment whereof has not been assumed by a person preceding him in the handling of said lot of products, such tax of six (6¢ ) cents per gallon being made up of two separate taxes, being.

'First Gas Tax: A tax of three (3¢ ) cents per gallon for the use of the State Road Department, as provided by law;

'Second Gas Tax: A tax of three (3¢ ) cents a gallon to be apportioned, as provided for in Section 8 of this Act.

* * *

'Section 3. All moneys derived from the gas taxes imposed by this Act, shall be paid into the State Treasury by the Comptroller, as follows:

'First Gas Tax--Shall be paid into the 'State Road License Fund';

'Second Gas Tax--Shall be paid into the 'State Roads Distribution Fund'. 'Which said special funds are hereby created for the reception of the same.

* * *

'Section 7. It is hereby expressly recognized and declared by the Legislature of the State of Florida that all roads being constructed or built or which have heretofore been constructed or built, or which will be hereafter constructed or built by the State Road Department under prior authorization and/or designation by the Legislature of the State of Florida as State Roads, or which were constructed or built by any county or special road and bridge district or other special taxing districts thereof, were, are and will be constructed and built as State projects and undertakings, and that the cost of the construction and building thereof was, is and will be a legitimate proper state expense incurred for a general and state purpose and should be wholly borne by the State of Florida. It is hereby expressly recognized that certain of the counties of the State of Florida and/or special road and bridge districts or other taxing districts of such counties have advanced or contributed and paid to the State Road Department varying sums of money to be used and expended by said State Road Department in the construction and building of state roads theretofore authorized and/or designated by the Legislature of the State of Florida as state projects, and it is hereby expressly recognized that certain of the counties of the State of Florida and/or special road and bridge districts or other taxing districts of such counties have paid or expended or caused to have been paid or expended varying sums of money in the construction and building of certain roads that are now state roads and heretofore designated as state roads by the Legislature of the State of Florida and that all such moneys have been and are being expended, furnished, advanced, contributed or paid out on account of expenses of the State in construction and building of said state roads to and for the general benefit of the State and that such sums should be returned and repaid respectively to each county to the amount that such county and/or any special road and bridge district or special taxing districts thereof have advanced or expended in the construction of the same.

'Section 8. (a) The chairman and auditor of the State Road Department shall, within ninety (90) days after this act becomes a law, ascertain and certify to the Comptroller of the State of Florida and to the Board of Administration and to each county within the State of Florida the amount of money advanced and paid by the several counties, and/or special road and bridge districts or other special taxing districts of any counties, to the state for the use of the State Road Department in the construction and building of state roads, specifying separately and particularly the amount advanced and paid by each county; and the chairman and auditor of the State Road Department shall, within ninety (90) days after this act becomes a law, ascertain and certify to the Comptroller and to the Board of Administration and to every county of the State of Florida, the amount of money furnished, advanced, contributed, paid out or expended by the several counties and/or special road and bridge districts or other special taxing districts of such counties in the building and construction of roads that are now designated state roads, specifying separately and particularly the amount furnished and expended by each county. The amount so certified as to any county shall include all moneys advanced, contributed, paid and expended, as aforesaid, by such county and by every special road and bridge district or other special taxing district for road and bridge purposes on roads now designated as state roads, in such county.

'(b) Said certificate shall be audited by the Comptroller, and, being found correct, shall constitute the basis for the subsequent allocation and apportionment of the moneys to be derived from the Second Gas Tax and from which the disbursement shall be made to, or for the benefit of, such respective counties as herein provided, out of said 'State Roads Distribution Fund' account. The Comptroller shall each month, draw his order on the Treasurer of the State of Florida for the full net amount of moneys then with the State Treasury in said 'State Roads Distribution Fund' specifying the counties to which said moneys shall be paid, and the amount to be paid to each county, respectively, which said sums so apportioned to the counties are hereby appropriated monthly out of said 'State Roads Distribution Fund' account. Said orders of said Comptroller shall be countersigned by the Governor, and shall be payable to the State Treasurer as ex officio Treasurer of the counties, respectively, participating therein. The monthly schedule of installments to be so paid to or for such counties shall be computed, determined and paid out monthly in the following ratio, to-wit:

'1. The proceeds of one cent of the said Second Gas Tax shall be apportioned to the credit of the several counties on...